What is Probate?
Probate is the process that transfers legal title of property
from the estate of the person who has died (the "decedent") to
his or her proper beneficiaries.
The term "probate" refers to a "proving" of the existence of a
valid Will, or determining and "proving" who one's legal heirs
are if there is no Will. Since the deceased can't take it with
him, probate is the process used to determine who gets his or
her property.
WHY IS PROBATE NECESSARY?
The primary function of probate is transferring title of the
decedent’s property to his heirs and/or beneficiaries. If there
is no property to transfer, there is usually no need for
probate.
Another function of probate is to provide for the collection of
any taxes due by reason of the deceased's death or on the
transfer of his or her property.
The probate process also provides a mechanism for payment of
outstanding debts and taxes of the estate, for setting a
deadline for creditors to file claims (thus foreclosing any old
or unpaid creditors from haunting heirs or beneficiaries) and
for the distribution of the remainder of the estate's property
to ones' rightful heirs
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Wills, Estates, Probate, Deeds and Powers
of Attorney
Will:
A Will is a person's final request as to how their belongings, property
and
sometimes guardianship of minor children, shall be
administered upon their death.
Estate:
A Will has no legal effect until the testator (person who
made the Will) dies and an Estate is opened in Probate Court
(Probate Court is also called Chancery Court).
Probate:
Once an estate is opened, the terms of the Will is probated
meaning the
testator's final request is carried out until all of the
requests are complete. This process
takes any where from five months to 10 years, depending upon
the complexity of the
estate, how much the estate is worth, how many heirs, what
type of taxes are due and
payable, if there are any businesses owned by the testator,
whether the Will is contested,
etc.
Living Wills :
A Living Will is different than a Will in that the terms of
the Living Will are
carried out while the testator is still living. A Living
Will provides the wishes of the
testator if the testator is incapacitated and unable to make
a decision for themselves at
that time. The usual decisions that are determined by a
Living Will are (1) whether or not
the testator wants to be kept alive on life support or be
fed and kept alive on any artificial
means, and (2) whether the testator wishes his/her organs to
be donated upon death.
Once a Living Will is executed, the testator needs to give a
copy to all immediate
relatives, his/her doctor, his/her hospital and anyone else
who would need to know the
testator's decisions.
Deeds and Powers of Attorney:
The Law Office of Richard M. Brooks also can draft deeds,
deeds of trust, perform title searches and title opinions,
powers of attorney, basic contracts and any other type of
legal document.
For additional information or questions concerning your
case, contact the Law Office of
Richard M. Brooks to make an appointment.
E-Mail:
Richard M. Brooks
rmbrooks@richardmbrooks.com
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